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IANAL (I am not a lawyer)

Date: November 12, 2002 | 7 Ramadan 1423 Hijriah
Blog: veiled4allah
Subjects: law, issues
Disclaimer: The following should not be construed as legal advice or opinion. It's just an argument that I worked up, because I'm a law nerd.

The word "attainder" is defined as: the extinction of the civil rights and capacities of a person, consequent upon sentence of death or outlawry; as, an act of attainder (Reference: Webster's Revised Unabridged Dictionary).

"Outlawry" is: the putting a man out of the protection of law (Reference: Webster's Revised Unabridged Dictionary). In medieval times, a judgment of outlawry meant that the person's property was confiscated by the king and that he could subsequently be killed with impunity; that is, the killer would face no penalty (Source: Guide to Medieval Terms under "outlawry").

Combining these two definitions, we can say that a "bill of attainder" is: a law or decree that sets as a penalty the confiscation of property or the stripping of civil rights, or that declares that a person or group of people may be punished or put to death without due process of law. (Cf. Definition given by the Bill of Attainder Project: "A bill of attainder is a law, or legal device, used to outlaw people, suspend their civil rights, confiscate their property, put them to death, or [otherwise] punish them without a trial")

The Sixth Amendment to the U.S. Constitution lists the following as necessary elements of "due process of law":
  • a speedy and public trial
  • an impartial jury in the state and district where the crime was committed
  • that the accused is informed of the nature and cause of the accusation against him
  • that the accused may confront the witnesses who are testifying against him
  • that the accused may obtain witnesses to testify in his favor
  • that the accused has the assistance of counsel for his defense
The question: Is an executive order declaring a person to be an "enemy combatant" who can be held indefinitely without access to legal counsel and without being informed of the charges against him or being able to call witnesses in his own defense, and who would be tried by a military tribunal rather than an impartial jury in a public trial, a bill of attainder?

Based on the above suggested definition of bills of attainder, I believe that it may be. Given that Article I Section 9 Paragraph 3 of the U.S. Constitution forbids bills of attainder, these executive orders declaring American citizens such as Jose Padilla and Yaser Hamdi to be "enemy combatants" may be illegal and unconstitutional. The issue is whether a bill of attainder only refers to punishment or putting to death "without a trial" or if it includes punishment or putting to death "without due process of law".

N.B. This is not the only argument by which the executive orders may be unconstitutional (see War and the Constitution), but it's one that occurred to me while reading about bills of attainder. If any of my visitors have thoughts on this issue, I'd be glad to hear them.
~ Posted by Al-Muhajabah, a member of the reality-based community, at 07:55 PM

Comments

moderator Al-Munaqabah said: Total comments: 996   gold stargold stargold stargold stargold star

I may not be a lawyer, but I found that the decree against Jose Padilla is indeed being called a bill of attainder in an amici curiae brief (PDF) filed by the National Association of Criminal Defense Lawyers and the NY State Association of Criminal Defense Lawyers (scroll to pages 59-60 to read the pertinent discussion). The brief has a lot else to say about what's wrong with how the government is treating Padilla.

Here's an article that explicitly discusses the question of whether the decree against Padilla is a bill of attainder: The Executive Bill of Attainder. Also, the decree is compared to a bill of attainder by Neal J. Mahoney, a former assistant district attorney for Buffalo, New York at Bush Makes Another Surgical Strike on the Constitution

~ Posted at November 12, 2002 11:04 PM | Comment Permalink

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